International Criminal Court (ICC) appeals judges have upheld a trial chamber’s decision to maintain restrictions that were imposed on Bosco Ntaganda’s communications in 2015 after the Office of the Prosecutor (OTP) accused him of witness tampering.
The Appeals Chamber found that trial judges correctly balanced Ntaganda’s right to respect for his private and family life against the objectives of ensuring the safety of witnesses, preventing breaches of confidentiality, and ensuring the integrity of the trial proceedings.
They said a finding that there were reasonable grounds to believe Ntaganda personally engaged in witness interference was relevant to the imposition of these restrictions and for their continuation in order to reduce the risk of tampering to the proceedings.
On March 13, Ntaganda’s lawyers wrote to judges requesting that they invite parties to make submissions on the continued need for the restrictions. This would assist the judges in conducting their periodic review of the continued necessity and proportionality of the restrictions.
The defense argues that this is an appropriate time for the review because the previous one was conducted six months ago, and the prosecution has completed the presentation of all its witnesses.
On September 7, 2016, trial judges maintained restrictions on Ntaganda’s contacts with the outside world, although they added one person to the list of those he was authorized to have contact with. At the time, the judges stated that it was necessary to maintain the restrictions, as they had found reasonable grounds to believe that Ntaganda personally engaged in witness coaching and also directed his associates to do so.
The decision to maintain the restrictions prompted Ntaganda to go on a 14-day hunger strike and boycott of proceedings. Ntaganda also refused to take medicine prescribed to him, returned to detention center officials the telephone close to his cell by which he previously communicated, and declined to authorize any member of the defense team to represent him during his absence. He ended the boycott after court officials arranged for his wife to visit him for eight days, in conditions he deemed acceptable.
Under restrictions imposed on the accused in August 2015, his telephone communications were only permitted with two individuals (before a third contact was later added). The calls are actively monitored, are limited in duration, language, and subject matter, with the use of coded language or discussion of case-related matters prohibited. He is permitted to speak to his children through his wife, and he can record messages to be played to the seven children after review of their content by the court’s Registry. Ntaganda’s communications are limited to one hour per week.
In its ruling, the appeals chamber noted that while it accepts that the restrictions on Ntaganda’s contacts with other persons are significant and likely to lead to hardship on his part, not least because of their length, the trial chamber had not erred in determining that the restrictions were still necessary.
Last October, the prosecution asked urged judges to maintain the restrictions, terming them lawful, necessary, and proportionate because Ntaganda violated both the chamber’s orders and detention center regulations.